Exhibit 10.4
LOAN MODIFICATION AND FORBEARANCE AGREEMENT
This Loan Modification and Forbearance Agreement (this "Agreement")
is entered into as of November 6, 2001, by and between GIGA INFORMATION GROUP,
INC. ("Borrower") and Silicon Valley Bank ("Bank").
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other indebtedness which may be
owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among other
documents, an Accounts Receivable Financing Agreement dated April 7, 2000, as
may be amended from time to time, (the "Loan Agreement"). Hereinafter the Loan
Agreement shall be referred to as the "Loan Agreement." Defined terms used but
not otherwise defined herein shall have the same meanings as in the Loan
Agreement. Hereinafter, all indebtedness owing by Borrower to Bank shall be
referred to as the "Indebtedness."
2. DESCRIPTION OF COLLATERAL AND GUARANTIES. Repayment of the Indebtedness is
secured by the Collateral as described in the Loan Agreement.
Hereinafter, the above-described security documents and guaranties, together
with all other documents securing repayment of the Indebtedness shall be
referred to as the "Security Documents". Hereinafter, the Security Documents,
together with all other documents evidencing or securing the Indebtedness shall
be referred to as the "Existing Loan Documents".
3. FORBEARANCE. Bank agrees to forebear until December 31, 2001 (the Forbearance
Period") from exercising its remedies under the Existing Loan Documents,
notwithstanding Borrower's existing default under the Loan Agreement as a result
of Borrower's failure to meet the Adjusted Quick Ratio for the quarter ending
September 2001, (the foregoing being referred to as "Existing Defaults") or any
future breaches under the Existing Loan Documents, as modified by this Loan
Modification and Forbearance Agreement (as so modified, the "Loan Documents").
By signing below, Borrower acknowledges that they are currently in default and
as a result of such default, Bank is entitled to exercise its remedies as
provided in the Existing Loan Documents and as provided under applicable law.
Nothing in this Agreement in any way shall constitute Bank's waiver of
Borrower's Existing Defaults.
A breach by Borrower of any of the terms set forth in this Agreement or the
occurrence of any default (other than the Existing Defaults) under the Existing
Loan Documents shall result in immediate termination of Bank's forbearance,
whereupon Bank, at its option, without any notice to Borrower, may immediately
cease making any Advances and may immediately exercise any remedies available to
Bank under the Existing Loan Documents and this Agreement, and under applicable
law.
Upon termination of the Forbearance Period described above, without any notice
to Borrower, Bank may exercise any remedies available to Bank under the Loan
Documents and under applicable law. In addition, Bank's agreement to continue to
forbear from enforcing its remedies under the Existing Loan Documents until the
end of the Forbearance Period, notwithstanding Borrower's Existing Defaults
under the Existing Loan Documents, (a) in no way shall be deemed an agreement by
Bank to waive Borrower's compliance with all other terms of the Existing Loan
Documents, as modified by this Loan Modification and Forbearance Agreement and
(b) shall not limit or impair Bank's right to demand strict performance of all
other terms and covenants as of any date. The Borrower further agrees that the
exercise of any rights or remedies allowed to Bank when an Event of Default
occurs, as provided for in the Existing Loan Documents (the "Default Rights")
upon termination of the Forbearance Period shall not be affected by reason of
this Agreement and the Borrower shall not assert as a defense thereto the
passage of time, estoppel, laches or any statute of limitations to the extent
that the exercise of any Default Rights was precluded by this Agreement.
4. DESCRIPTION OF CHANGE IN TERMS.
A. Modification to Loan Agreement.
None
5. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
6. NO DEFENSES OF BORROWER. Borrower (and each guarantor and pledgor signing
below) agrees that, as of the date hereof, it has no defenses against the
obligations to pay any amounts under the Indebtedness.
7. WAIVER AND RELEASE OF CLAIMS.
(a) Borrower and each Guarantor signing below (each of the foregoing being a
"Releasing Party") hereby releases, acquits, and discharges Bank and Bank's
employees, agents, representative, consultants, attorneys, fiduciaries,
servants, officers, directors, partners, predecessors, successors and assigns,
subsidiary corporations, parent corporations, and related corporate divisions
(all of the foregoing hereinafter called the "Released Parties"), from all
actions and causes of action, judgments, executions, suits, debts, claims,
demands, liabilities, obligations, damages, and expenses of any and every
character, known or unknown, direct and/or indirect, at law or in equity, of
whatsoever kind or nature, whether heretofore or hereafter arising, for or
because of any matter or things done, omitted or suffered to be done by any of
the Released Parties prior to and including the date of execution hereof, and in
any way directly or indirectly arising out of or in any way connect to this
Agreement and the Existing Loan Documents, including, but not limited to, claims
relating to any settlement negotiation (all of the foregoing hereinafter called
the "Released Matters"). Each Releasing Party acknowledges that the agreements
in this section are intended to be in full satisfaction of all or any alleged
injuries or damages arising in connection with the Released Matters.
(b) Each Releasing Party acknowledges that it has not relied, in executing the
release set forth in this section, upon any representations, warranties, or
conditions by Bank or any other entity except as are specifically set forth in
this Agreement.
(c) Nothing contained herein shall be construed at any time as an admission by
Bank of any liability to Borrower or any other entity.
(d) Each Releasing Party warrants to Bank that it has not purported to transfer,
assign, or otherwise convey any right, title or interest of such Releasing Party
in any Released Matter to any other entity, and that the foregoing constitutes a
full and complete release of all Released Matters.
(e) Each Releasing Party hereby waives all rights which it may have under the
provisions of California Civil Code Section 1542, which reads as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor.
8. CONTINUING VALIDITY. Borrower (and each Guarantor signing below) understands
and agrees that in modifying the existing Indebtedness, Bank is relying upon
Borrower's representations, warranties, and agreements, as set forth in the
Existing Loan Documents. Except as expressly modified pursuant to this
Agreement, the terms of the Existing Loan Documents remain unchanged and in full
force and effect. Bank's agreement to modifications to the existing Indebtedness
pursuant to this Agreement in no way shall obligate Bank to make any future
modifications to the Indebtedness. Nothing in this Agreement shall constitute a
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satisfaction of the Indebtedness. It is the intention of Bank and Borrower to
retain as liable parties all makers and endorsers of Existing Loan Documents,
unless the party is expressly released by Bank in writing. No maker, endorser,
or guarantor will be released by virtue of this Agreement. The terms of this
Paragraph apply not only to this Agreement, but also to all subsequent loan
modification agreements.
9. INTEGRATION. This Agreement, together with the Existing Loan Documents,
constitutes the entire agreement and understanding among the parties relating to
the subject matter hereof, and supersedes all prior and contemporaneous
proposals, negotiations, agreements, and understandings relating to the subject
matter. In entering into this Agreement, Borrower acknowledges that it is
relying on no statement, representation, warranty, covenant, or agreement of any
kind made by the Bank or any employee or agent of Bank, except for the
agreements of Bank set forth herein. No modification, rescission, waiver,
release, or amendment of any provision of this Agreement shall be made, except
by a written agreement signed by Bank and Borrower.
This Forbearance Agreement is executed as of the date first written
above.
BORROWER: BANK:
GIGA INFORMATION GROUP, INC. SILICON VALLEY BANK
By: /s/ XX XXXXX By: /s/ Xxxxx Xxxxx
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Name: Xxxxxxxx X. Xxxxx Name: Xxxxx Xxxxx
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Title: Senior Vice President and Title: Senior Vice President
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Chief Financial Officer
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